In Depth

A doctor who chose to perform just one biopsy instead of two on a woman who later was diagnosed with cervical cancer is not
entitled to summary judgment on his defense asserting the medical malpractice statute of limitations, the Indiana Supreme
Court ruled Wednesday.

A routine pap smear performed by Lisa David’s doctor, Dr. William Kleckner, detected abnormalities. The pathologist
recommended an endocervical and endometrial biopsy. Kleckner only performed the endometrial biopsy Feb. 27, 2009. Those results
“came back clear,” but in September 2009, Lisa David visited another doctor due to pain and discomfort. That doctor
found a mass on her cervix. She was diagnosed with cancer, began treatment, but died March 25, 2011.

Sometime in February 2011, David’s husband became suspicious as to why Kleckner did not find any evidence of cancer
or a tumor and obtained her medical records. That’s when he discovered Kleckner did not perform the endocervical biopsy.
The wrongful death medical malpractice action was brought by Larry David July 1, 2011. The trial court granted summary judgment
to Kleckner, who argued the complaint was barred by the statute of limitations.

“We conclude that neither Brinkman, Overton, nor Herron should be read to undermine the discovery
opportunity element expressly recognized in Manley, Van Dusen and Booth. Thus, in determining whether a
medical malpractice claim has been commenced within the medical malpractice statute of limitations, the discovery or trigger
date is the point when a claimant either knows of the malpractice and resulting injury, or learns of facts that, in the exercise
of reasonable diligence, should lead to the discovery of the malpractice and the resulting injury,” Chief Justice Brent
Dickson wrote.

Kleckner established that the action was filed by David more than two years after the date of the alleged malpractice, but
David is able to show there is a disputed fact as to when his wife could have discovered whether Kleckner’s failure
to perform the endocervical biopsy caused or inhibited timely treatment.

“We find that it was not necessarily an unreasonable delay for this action to be commenced on July 1, 2011, and that
the plaintiff may be found to have filed within a reasonable time if the trigger date occurred within the statutory window,”
Dickson wrote.

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